Rhonwood Pty Ltd v Cairns City Council

[2000] QPEC 24

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT CAIRNS

QUEENSLAND  No. 19 of  1999

BETWEEN:     RHONWOOD PTY LTD

Appellant

AND:               CAIRNS CITY COUNCIL

Respondent

AND:               STATELAND PTY LTD

Co-respondent

REASONS FOR JUDGMENT

1. This is an appeal against the refusal by the respondent Council of an application for approval of a proposed development on a parcel of land at Palm Cove for the purposes of 56 one and two bedroom holiday units with a 3 bedroom manager’s residence. On the 18 February I received evidence and heard argument concerning a preliminary objection by the co-respondent to the sufficiency of the applicant’s compliance with the provisions of Part 4 Notification Stage of the Integrated Planning Act 1997. By the time the appeal came on for hearing on 6 March I had not delivered a decision concerning that preliminary objection. I did indicate however that I proposed to rule that the notification stage had been complied with and the hearing of the substantive appeal proceeded on the basis that I would give reasons for my decision concerning the issue of the notification stage as part of these reasons.

2. The affidavit of Peter Robinson sets out the manner of compliance with the requirements of the Act as to the posting of public notices and the giving of notice to the owners of adjoining properties.  The only issue taken by the co-respondent is with the sufficiency of the description of the proposed development.  In each of the notices the proposal was referred to as:-

   “Holiday Apartments (56) and manager’s residence.”

On the plans submitted to the respondent council with the application it is indicated that a swimming pool is proposed as part of the development.  On the plan the words “dive instruction” appear on the swimming pool.  The co-respondent has interpreted this as indicating an intention on the part of the applicant to have scuba diving instruction classes occur in the swimming pool at the proposed development.  It is submitted that if this is so, then some reference to such a use should have been included in the description of the proposal in the relevant notices. I am of the view that if in fact the applicant proposes to have scuba diving classes conducted in the swimming pool at the proposed development then that would be a use to which some reference should have been made in the notices.  However, much will depend upon the extent to which the swimming pool is used for dive instruction.  As I indicated during the course of argument an occasional instruction to an individual visitor to the development would not be such as to require notice. Mr. Morzone, who appeared for the applicant, conceded that if the use was such as to require public notification the applicant would abandon it.  In my view that is the sensible approach to take.  It seems that dive instruction was never intended to be an integral part of the application.  If the proposed development were to proceed and to be put to use as a site for dive instruction then the question of whether or not that is a permissible use will depend very much on the scale of the operation and can be determined at an appropriate time.  For the purposes of this application it does not support a ruling that the requirements of the notification stage were not met by the appellant.

1. The other objection taken by the co-respondent to the sufficiency of the material lodged with the application to the respondent council.  One of the objections taken is that the plan submitted with the application –

   (a)does not include dimensions of the buildings and other structures proposed

   (b)does not include the distance in metres from the nearest point of every such building to the boundary of the site

   (c)     the internal layout of the reception building
                   (c)     the location and internal layout of the manager’s apartment.

It is submitted that these inadequacies mean that any person examining the application and its accompanying documents would not be sufficiently informed of the nature of the proposed development so as to make an informed decision as to whether or not to make a submission to Council, object to the proposal, and appeal or take part in an appeal to the Planning and Environment Court should one eventuate.  In my view there is no substance to the submission.  The site plan lodged with the application illustrates that it is drawn to the scale 1:500.  Any person interested in the dimension of buildings, building setbacks etc. can quite easily ascertain at least approximately such dimensions from the plan.  In my view it is not necessary for an interested member of the public to be aware of the internal layout of the reception building.  In my view also, given its lack of impact on the use as a whole, it is not necessary for a member of the public to know of the exact location and internal layout of the manager’s apartment.

1. It is also suggested that the information provided with the application is inadequate because it does not provide any site population density information.  I would have thought that a member of the public notified of the number of units involved could readily form a conclusion as to the maximum number of people likely to be on the site at any one time.  Such a person would simply take the number of units, that is 56, and multiple by four, making a total of 224.  Add a few more on for the manager’s residence and a figure of 230 is arrived at.  I am well aware that most local authorities have a standard number which is applied to accommodation units in order to calculate estimated site densities.  To the best of my knowledge the rates applied are somewhat less than I have applied in the exercise just set out.  The submission appears to be that the applicant in this case should have applied the standard averages usually applied by the respondent council to the proposed development and specifically stated the site density in the application.  In my view no such exercise is required.  The description of the proposal in the public notices and the application, and the accompanying plan, in my view is quite sufficient to permit an interested member of the public to make an estimate of the maximum population density on the site at any one time, so as to make an informed opinion as to whether or not to make a submission, object to the application, and if necessary take part in the hearing of any appeal.

2. In summary, therefore, I am satisfied that the application contained sufficient information concerning the proposed development.  I am satisfied that the notification stage has been properly fulfilled.

3. The subject land has a frontage to Cedar Road at Palm Cove.  It has an area of 1.334 hectares.  The frontage is at approximately a 45 degree angle across the width of the allotment and is about 75 metres in length.  The proposed accommodation units will be contained in six separate buildings ranging down either side of the allotment.  In the centre of the allotment will be outdoor entertainment areas, including a lagoon and swimming pools.  Towards the front of the allotment will be a reception building.  On the southern side of the allotment towards the front will be a carpark.  It is proposed to construct 44 x 2 bedroom units, 12 x 1 bedroom units and a 3 bedroom manager’s residence.  The buildings which will accommodate these units are intended to be on two levels.

4. It is intended that the units are to be used by holiday makers (tourists) wanting self-catered accommodation.  This means that the units will primarily be used for short term accommodation during which the occupants will prepare their own meals or bring pre-prepared meals from outside the development.  There will be little in the way of active entertainment on site.  A swimming pool and outdoor barbecue area will be available for the use of guests.  However, by and large it is intended that the development will provide short-term housing for holiday makers whilst they do their sightseeing and engage in physically active holiday activities and entertainment away from the site. 

5. The issues on the appeal are those set out in the reasons for refusal which is contained in the decision notice which s the last document of ex.2.  Reason No.4 has not really been advanced in evidence.  Frankly, I don’t understand it.  There is substantial tourism development at Palm Cove.  Much of it is on a much more intense scale than the proposed development.  All of the usual services are available.  I do not consider reason 4 provides any basis at all for refusal of the application.  Reasons 1 and 2 relate to the provisions of the Town Planning Scheme.  It is the submission of the respondents that the proposal is contrary to the provisions of the Town Planning Scheme.  I propose to examine this proposition.  The Strategic Plan has a section dealing with economic development.  At paragraph 5.4 it acknowledges that tourism (and agriculture) are responsible for the majority of wealth generated in the city of Cairns.  It goes onto provide –

   “For this reason and the fact that these two industries are so much a part of the fabric of the everyday life in the region, special objectives and implementation criteria for tourism (and agriculture) are provided below.”

The plan lists a number of tourism objectives.  The first of these is “to identify land appropriate for tourism development and to provide for the many and varied activities required by modern tourism”.  Whilst the balance of the Strategic Plan goes on to suggest a degree of regulation and control of tourism development, in my view objective 1 clearly intends to promote the tourism industry in Cairns city, in light of its importance to the economic wellbeing of the city and its community.  The implementation of that objective is provided for as follows:-

(a)The tourism strategy diagram A-4 provides the mechanism for identifying land appropriate for future large scale tourist development along with existing developments and major tourism routes.  Sites identified may exhibit features on part of the site which may limit the extent of development.  These features shall be identified and assessed at the development application stage.

(b)Council shall not approve development applications for tourism development outside of this area unless it is in accordance with the Strategic Plan or there are sufficient planning grounds to justify approving the application despite the conflict (Refer s.1.0).

(c)Council has introduced the Tourism Development Area (TDA) designation in the regulatory maps to indicate areas that are zoned or likely to be zoned Residential 2(R2) Residential 3(R3) or Special Facilities which may be appropriate for an expanded number of developments under the table of zones to cater for the tourist population.  Council may amend the regulatory maps from time to time to include additional tourist sites where such a course of action is appropriate in all the circumstances applying at the time but provided always that the development complies with the Strategic Plan.”

In my view paragraph (a) and the tourism strategy diagram A-4 have no direct application to the subject site.  This is because the proposed development is not a large scale tourist development and nor is it an existing development. What the strategy diagram A-4 does illustrate and a visit to Palm Cove does illustrate is that Palm Cove is acknowledged by the Strategic Plan as the major tourist destination of all the northern beaches suburbs of Cairns.  It already has major tourist development established at Palm Cove, and it is designated as a location appropriate for future large scale tourist development.  The respondents seem to rely on (c) as indicating that the proposed development is contrary to the Strategic Plan. It is submitted that the subject land is not designated as a tourism development area. That is correct. It is submitted therefore that the Strategic Plan provides as a starting point that there should be no tourist development outside an area designated as a tourism development area.  I do not interpret (c) as having that meaning.  I interpret (c) as meaning –

1.that there are areas that are zoned or likely to be zoned Residential 2, Residential 3 or Special Facilities which may be appropriate for an expanded number of developments under the table of zones to cater for the tourist population.

2.that there may be additional areas which are zoned Residential 2, Residential 3 or Special Facilities or which may be likely to be so zoned in the future, which could be suitable for developments to cater for the tourist population and that council may approve such developments if such a course of action is appropriate.

The evidence suggests that this is the way the Council has been approaching the interpretation of the Strategic Plan in the past.  My attention was drawn to a number of examples of tourism developments in residential zones on land without a TDA designation, in particular, the existing holiday apartments across Cedar Road from the subject site.  An acknowledgment that there may be additional areas suitable for tourist development, not already earmarked for such development in the Strategic Plan in my view cannot be interpreted as meaning that tourist development is not to take place outside an area designated a tourism development area.

1. It is also not insignificant to note that the subject site is in the R2 zone.  That is, it is in one of the zones which item (c) acknowledges may contain area suitable for tourism development.

2. Ex.3 is the zoning map for the Palm Cove area which has upon it superimposed with blue hatching, the area designated as a tourism development area on the regulatory map.  It confirms that the subject site is in the R2 zone.  In Part C of the Town Planning Scheme dealing with development zones, s.6.0 contains the regulatory maps to which I have referred.  The narrative to s.6.0 regulatory maps makes it clear that the scheme considers those areas designated as a tourism development area as being an appropriate area for tourism developments to be established.  However, it in no way indicates that areas not designated as TDA are unsuitable for tourism development.  Nor does it suggest that the council is opposed to tourism developments being established outside tourism development areas. 

3. When one goes to the table of zones and s.5.1.3 dealing with the Residential 2 zone without a TDA designation, it is probably fair to say that according to the table of zones this proposed development would be a prohibited development.  However there is an anomaly in the table of zones in that there is no definition of a development entitled Holiday Apartments (max 2 storey) whilst there is such a definition for Holiday Apartments (max 3 storey) and Holiday Apartments (max 4 storey).  This may be contrasted to the definitions of multiple dwellings which defines developments known as multiple dwellings (max  2, 3 and 4 storeys).  Interestingly in the R2 zone without a TDA designation multiple dwelling (max 3 and 4 storeys) are prohibited uses.  By implication therefore multiple dwelling 2 storeys would be a permissible use.  As I will explain further I consider this to be a relevant matter in assessing the suitability of the proposed development for the subject site.  It is also not irrelevant that in the R2 zone without a TDA designation, there are low impact uses which might well be attractive to tourists which are permissible uses, namely a night tennis court and restaurant.  In my view the combination of the Strategic Plan, the Development Zones, and the table of zones is consistent with common sense in that the table of zones and development zones section of the plan recognise that there will be many areas of the balance of the city of Cairns which are zoned R2 which would just never be appropriate for any form of tourist development no matter how low the impact of that development might be on surrounding residents.  However the Strategic Plan recognises that in some areas which are already given over to substantial tourism development and/or which are identified as areas suitable for an expansion of tourism development, it may be appropriate to allow a tourist development in the R2 zone provided it is assessed on its merits.  For instance it would be absurd to suggest that a parcel of land such as the subject site would be suitable for something such as a night club or water slide in light of its proximity to permanent residential areas.  However as is suggested by the applicant in this case, a low impact tourist development may be quite compatible with local residential uses in an area in which the local residents are familiar with other tourism developments in their neighbourhood.

4. Reason for refusal No.3 is as follows:-

   “The land is outside the tourism development area identified on regulatory map series C1.1 and the applicant has not demonstrated that there is a genuine need for additional tourist accommodation outside the tourism development area.”

I have already dealt with the first part of this reason for refusal.  As to the second part of this reason, the respondent did not seriously litigate it.  In my view there is always an ongoing need for a variety of types of accommodation to cater for the varying needs of tourists.  Palm Cove being the premier tourist destination in the northern beaches area is obviously one place at which there will be a need for such variety of accommodation forms and in my view a gradually growing need for a variety of accommodation forms.  There is no suggestion of any over supply of tourist accommodation at Palm Cove. However much of the tourist accommodation available is of the fully serviced resort style accommodation, such as is found in the tourism development area along the beach. I am satisfied that sufficient need has been demonstrated to support approval of the proposed development.

1. Reason for refusal No.5 is as follows:-

   “The proposed development is contrary to council’s established planning direction that tourist accommodation/activities and permanent residential development should be separated.”

Frankly, the respondents have completely failed to convince me that the council has any “established planning direction” that tourist accommodation and activities and permanent residential developments should be separated.  Obviously, tourist accommodation/activities and residential development will, of necessity, be separated in that they will occur on different parcels of land.  However, one only has to look at ex.3 to see that there is no significant separation between the tourist development area along the beach front and the Residential 1 area immediately across Olivia Street.  Residential 1 allotments fronting Telpa Close actually back onto a designated tourist development area as it fronts McDonald Close.  There is a large allotment of land opposite the entrance of Coral Coast Drive which is zoned Residential 1 and is actually included in the tourism development area. 

1. In my view reason for refusal No.5 is a reflection of what I, unfortunately, view as an irrational, prejudicial view on the part of the town planning witnesses who gave evidence for the respondent and co-respondent that somehow tourists, simply because they are tourists, should not be permitted in residential areas because they will disrupt and in some way be offensive to the permanent residents.  I have no difficulty with the proposition that some activities undertaken by tourists can be disruptive and adversely affect the amenity of permanent residents if those activities are carried on close to permanent residences.  Such things, as I have earlier mentioned, as a night club or water slide may result in noise of such a magnitude which would affect local residents.  However this proposed development in its built form would not be substantially different to a development of 56 x 2 bedroom units as multiple dwellings for use by permanent residents.  Indeed, it is a development of that sort which the co-respondent proposes for the site next door.  The arguments advanced were that the holiday makers who might stay at the appellant’s proposed development would in some way behave in an extravagantly raucous fashion so as to disrupt the lifestyles of the permanent residents living in the surrounding area.  An image of wild parties was conjured up. Wild parties of course are not unknown in areas normally inhabited by permanent residents.  I find the view expressed by Mr. Dukes to have some force in that permanent residents are more likely to have parties involving significant numbers of people simply because, as permanent residents, they have friends and acquaintances in the neighbourhood who are able to attend parties.  For the most part tourists coming from another area will not have a source of guests for a noisy party simply because they know so few people in the area.  Because the proposed development does not provide any active recreational facility apart from a swimming pool, in my view the vast majority of people who stay at the development will go out during the day engaging in various activities such as sightseeing tours or going to the beach.  It may well be that at night some will go out to local restaurants to eat, it may well be that some will go to night clubs.  There is a possibility that from time to time some of the guests at the proposed development might return home in the early hours of the morning somewhat intoxicated and make some noise which disturbs local permanent residents as they do so.  In my view such occasions will be relatively rare and on the whole the holiday makers who stay at the development will be no more likely to engage in such activity than the permanent residents who already live around Palm Cove.  I think it is very relevant to consider the absence of widespread objection from residents who live immediately adjacent to the subject site.  Along Terebra and Thais Streets there are 17 allotments which adjoin the subject site.  They are already developed with single detached dwellings upon them.  Every one of the owners of those dwellings would have received personal notice of the proposed development.  Only two lodged objections.  An objection came of course from the co-respondent who is developing a project on the site to the north.  Much of the objection that he voiced fell within this prejudicial attitude towards tourists.  The balance of his objection as I interpret it is based upon dislike of the form of design of the applicant’s proposal.  I do not consider that the design alone of a project is a proper basis for an objection to a town planning proposal.  The design is a matter very much of personal taste.  I am satisfied that there is nothing in the design or layout of the proposed development which would interfere unreasonably with the co-respondent’s development and which cannot be adequately dealt with by the imposition of appropriate conditions.  It is also to the point that the residents of the neighbourhood surrounding the proposed site already have some experience of holiday units being operated in the area by reason of the development directly across the road from the subject site.  It must be remembered that tourists, when they are not being tourists, are permanent residents of some other place.  There are no doubt a number of tourist activities and forms of tourist activities which are incompatible with permanent residents and should not be permitted to be carried on in permanent residential areas or in some instances even tourist residential areas.  These are the same sorts of activities that many permanent residents engage in, but go away from the area in which they live in order to engage in them.  Permanent residents go to night clubs, spectator sporting activities and the like which, if carried on in residential areas, would be disruptive.  The point about this whole argument is that I am completely unpersuaded that any of the tourists who are likely to stay at the proposed development will carry on any unacceptable activities whilst they are present at the development.  In fact the presence of an on-site manager at the proposed development is more likely to prevent any raucous activity on the subject development whereas a multiple unit dwelling inhabited by permanent residents without on-site management would be devoid of any such curbing influence. 

1. The other factor which the respondents raise as being the result of the proposed development which is unsuitable in the residential area is that from time to time, tour  buses will stop to pick up tourists staying at the proposed development to go on day tours.  It is acknowledged that there is unlikely to be any increase in tourist bus traffic in Palm Cove created by the proposed development.  It simply means that in general tour buses which already pick up customers in Palm Cove will also pick up a few extra customers from the proposed development.  Cedar Road is already a road along which such buses travel.  There will therefore be no increase in tour bus traffic caused as a result of the proposed development.  The only complaint which can be made therefore is that buses stopped outside the proposed development waiting to collect tourists will have noisy engines running. I am not satisfied that this will be so, although it may occur on some occasions.  There are already, one would assume, tourist buses pulling up at the holiday units across the road.  In my view the most likely scenario is that tour bus operators will generally pull up in one location only and have their customers from both establishments come to that location to join the tour.  Whatever the case might be I am not satisfied that the increase in bus noise will be such as to unduly disturb local permanent residents.

2. I propose to uphold the appeal.  I will allow the parties to confer in the hope that they may be able to agree upon appropriate conditions.  They may contact the Registrar of the Court to arrange for the matter to be brought on as they feel advised.